00:00:20 Intro Hello and welcome back to the Civic Flame, a podcast where we take a deep dive into the US Constitution and talk about how it isÑand is notÑshaping the US government today! IÕm your host Amber Vayo, Professor of Law and Policy at Worcester State University. ThereÕs a lot going on in the world today, and one of the things we have been thinking about lately (really since the COVID pandemic and the struggle between states for resources) is the nature of the relationship among the US states. This is interesting now as we see different states and regional coalitions working together in light of diminishing resources and choices by the federal government to underfund some states. So, weÕll get into it this week, as we finish out the part of the Constitution that deal with that: Article 4, the full faith and credit clause, and questions of what states owe each other. Grab a seat by the first and letÕs knock out another Article of the Constitution! (transition music) 00:01:32 Intro to full faith and credit Last week we got into those major sections of Article four which are particularly full faith and credit (where states have to recognize the civil records and legal documents of other states) and privileges and immunities (which says states canÕt discriminate against you if youÕre from a different state. This week we get into more structural stuff and the ways the Constitution sets up some guidelines for stuff like adding new states and ensuring democratic governments in each states. 00:02:04 Article 4 Section 3 Article 4, Section 3 starts with: ÒNew States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.Ó 00:02:12 Constitutional Roots of full faith and credit Remember at the time when the Constitution was being written we were dealing with a lot of westward expansionÑthough given out expansionist ideas in Greenland and Venezuela, I guess not too much has changedÑso we needed some guidelines on what it meant to let states into the Union. 00:02:44 Missouri Compromise and Maine Secession Before the Civil War, there were questions about how to admit states into the Union. Typically, states were admitted two at a time to maintain the balance between free and slave states, or as I like to stay, states that allowed human trafficking and states that forbid it. This process was known as the Missouri Compromise and intended to restrict the spread of slavery geographically and in the federal legislature (Congress). This is why our sister state Maine left Massachusetts in 1820 to go live its own life (but we still share the same state bird: the beautiful Black-capped chickadee). 00:03:37 Is state secession legal? States also typically arenÕt allowed to secede unless there is some reason. So, you do form a new state from within a state (Maine) AND you have Maine secede from Massachusetts. How? Because of the end of the clause that stipulates Òwithout the Consent of the Legislatures of the States concerned as well as the Congress.Ó Incidentally, this is why I believe that we should reform a lot of the states rather than worry about getting rid of the Electoral College or gerrymandering. This could result in some hilarious states. I think, for instance, a lot of upstate New York would be happier as their own state and part of the Midwest than they are as part of New York City. But I donÕt live there, so itÕs not my problem. Western Mass would probably also happily no longer be a part of Massachusetts (until they tried out other states and then that Mass-hole pride took over). 00:04:50 West Virgina and the Loyalty of Hillbillies Other times weÕve seen states seceding are states like West Virginia. West Virginia did not want to secede from the Union because, say what you will about hillbillies, theyÕre not traitors. So, they were able to create West Virginia and stay in the Union. 00:05:09 Article 4 Section 3 Congress and forming states The state making ability gets further flushed out by the last part of section 3: ÒThe Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.Ó 00:05:40 ÒWhere our flag flies, the Constitution appliesÓ or the Constitution follows the flag This basically gives Congress authority over every place that is American, or as the saying goes: Òthe Constitution follows the flag.Ó Where our flag flies, the Constitution applies (ooh, IÕm putting that on a shirt). 00:06:00 Enemy combatant and Guantanamo Bay This was a real question during the second Iraq War when it came to Guantanamo Bay. As legal counsel from the Bush Administration admitted, they created the term Òenemy combatantÓ because they wanted something that legally didnÕt count. Prisoners of war have rights. Civilians have rights. ÒEnemy combatantsÓ werenÕt a thing, and under the liberal international order, you donÕt have a right unless itÕs spelled out. So, they went with that, and as their administration said were looking for Òthe legal equivalent of outer space.Ó They wanted somewhere they could claim the law didnÕt apply so they could engage in torture and other techniques that the Constitution forbids. 00:06:53. Hamdan v Rumsfeld JAG officer Charles D Swift But, as the Supreme Court decided multiple times in the early 2000s, the Constitution follows the flag: meaning that if itÕs ours, the Constitution applies to the agents of our governmentÑincluding the militaryÑthat are there. ThereÕs a great book by Jonathan Mahler, The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power, which tells the story of the torture program at Guantanamo Bay and the Air Force JAG Officer Navy Lt. Cmdr. Charles D. Swift who risked his career to defend the ConstitutionÑand the detainee who had been denied his rights. 00:07:30 Profile in Courage Charles Swift This is certainly a profile in courage because while our military members swear an oath to the Constitution and not a person, thatÕs not always as easy to do in real life when itÕs a time of war, a high temperature (fear and anger) time, and your entire career is at risk. 00:08:04 But the point here was that what Lt. Cmd. Swift followed was what Article 4 said: Congress has power over where ever is American. And that power also means Congress is bound by the rules, 00:08:33 the point of the Constitution because thatÕs the point of the Constitution. ItÕs meant to bind the government to behaving certain ways and being limited in certain ways regardless of who theyÕre dealing with. The, as it would turn out, really radical idea motivating our Constitutional development was that: if the government has power over someone you donÕt like, sooner or later itÕll be able to use that power over you. So, bind the powers to an appropriate level. And the last part of Article 4 deals with the other part. We donÕt just bind the government for fun. We bind the government because it ensures freedom. 00:09:10 Article 4 Section 4 Article 4, section 4 says, ÒThe United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.Ó 00:09:28 The Guarantee Clause and Laboratories of Democracy This is called the Òguarantee clause.Ó States are meant to be Ôlaboratories of democracyÓ theyÕre allowed to have a lot of flexibility in how to do everything, but at the end of the day, they have to have a republican form of government. Remember, in this case, a republican form of government is where the people govern through elections. 00:09:51 are we a democracy or a republic? Yes. We live in a democratic republic or a constitutional republic. Or a representative democracy. Depending on which aspect of our society youÕre looking at. A democracy is a government by the demosÑthe people. This is the main characteristic of who has power and how governments are chosen. The state and the system is a republic, one where the peopleÕs will is what is represented. Do, weÕre kind of all of the above. 00:10:13 Luther v Borden and Rhode Island Although if you want to get into some wild real life questions about this, check out the case Luther v Borden in 1849 when Rhode Island had two governments operating because one of them decided not to leave. New England is wild, yÕall. 00:10:30 Protect States against invasion The other thing in that section is that the federal government has to protect us from invasion and domestic violence. This means that if another state or country tries to invade us, the federal government has to help us stop them. The national guard was the big deal for this (or as it was known at the time, the Militia), but that was when we were engaging in westward expansion (also known as genocide) and the people who already lived there fought back. Today, this would be if something like New York seizing western Connecticut or making Jersey City the sixth burrough. The domestic violence part has to do with insurrection and rebellion, which was actually pretty common during George WashingtonÕs time and part of all that stuff about how/why the Articles of Confederation failed. 00:11:27 Wrap up Article 4 of the Constitution But that basically sums up our issues on what Article 4 requires. Some amount of cooperation between states, some limits on the ways states can fight, some ways the federal government has to guarantee the states are safe, and then some wiggle room where the states can expand. (transition music) This week has covered a lot of fun technical stuffÉwell, I think itÕs fun but IÕm a nerd. As we think about the ways states are supposed to work together, the 4th Article is an interesting way to conceptualize it. When we get to talking about the 14th Amendment some of this is coming back because within the context of full faith and credit and privileges and immunities, we get some questions about what the state and federal government owe each other. Which becomes, as you might imagine, even more complicated. 00:12:33 Article 4 and Restrictions on states and discrimination For now, itÕs enough to know that Article 4 is about keeping you safe by mandating that states have some restrictions on how they can discriminate against you, make your life freer by making sure that states have to acknowledge your ability to live, work, and get educated throughout any part of the country (so, if you want to change your name, fake your death, and start a new life in the wilds of Wyoming, youÕre legally welcome to do soÉnot the faking your own death part, but thatÕs one you). But Article 4 allows you some ability to have that freedom of movement and guarantee of democracy within your state. 00:13:10 Follow Dr Fun Sponge Media But thatÕs a wrap for this week and this Article. Until next time, follow us on Blue Sky, YouTube, Instagram, and Substack at Dr Fun Sponge or hit me up on LinkedIn for those looking for professional contacts. AS always, share widely and thanks for listening and keep the civic flame burning bright. (outro) 00:13:38 Thank you The Civic Flame is a collaboration with Dr Fun Sponge Media, writer Amber Vayo, and sound producer Matt Munyon. Thanks for listening.